(영문) 대전지방법원 2016.10.27. 선고 2016구합100828 판결

On February 12, 2016, the cancellation of approval of taking office by the defendant against the plaintiffs C (hereinafter referred to as "C") shall be revoked.

Reasons

1. Details of the disposition;

A. C is an educational foundation that establishes and operates D University, E High School, F High School, etc., and the Plaintiffs are currently serving as C’s director.

(b) The terms of office for C’s directors are as follows:

A person shall be appointed.

C. Even after the expiration of the term of office of I and J, a successor director was not appointed. On September 1, 2015, the Defendant sent to C a letter demanding C to appoint an executive officer with the following purport.

According to Article 24 of the Private School Act, the vacancy shall be filled within 2 months after the occurrence of the vacancy among the directors, so that the vacancy will be filled as soon as possible during September.* As a result of external legal advice from the Ministry of Education, the scope of participation of the expiration director of the right to take emergency measures of the board of directors shall be minimized within

D. On October 26, 2015, the Defendant issued C a request for correction, such as the appointment of a vacancy director and appointment of a director, and notified C of the cancellation of approval of taking office (hereinafter “instant request for correction”).

The Ministry of Education of the Republic of Korea calls C for the normal operation of the board of directors, such as filling a vacancy under Article 24 of the Private School Act, but C has not been implemented until now. In addition, in 2015, the board of directors is likely to cause serious trouble to the operation of the school because important issues, such as appointment of teachers of the school to which he/she belongs, preliminary and settlement of accounts, etc., have not been dealt with due to disputes between executives. ○○ as follows: (a) has demanded correction as follows; (b) has performed the corrective measures by November 16, 2015; and (c) has been scheduled to take measures, such as cancellation of approval for taking office pursuant to Article 20-2(2) of the Private School Act if the term of time is not fulfilled. 1. To appoint two chief directors and the two vacant directors until November 16, 2015; (d) have been appointed by the school foundation and the school affiliated with the school (school foundation established and operated by the school foundation) by November 16, 2016, 2015th.

E. C requested the Defendant to extend the due date for the corrective measures, and on November 23, 2015, the Defendant notified C to the effect that “after fulfilling the corrective measures by December 10, 2015,” the Defendant reported the result after fulfilling the corrective measures by December 10, 2015.”

F. C has held the board of directors as follows:

1) On October 29, 2015, the fourth board of directors in 2015 (hereinafter referred to as “fourth board of directors”): M (Acting on behalf of the president), the Plaintiffs, K, L, and J.

2) On November 27, 2015, the sixth Board of Directors on November 27, 2015 (hereinafter referred to as the “six Board of Directors”): The Plaintiffs, K, I, and H attendance.

3) On December 7, 2015, the 7th Board of Directors on December 2015 (hereinafter referred to as the “7th Board of Directors”): Plaintiffs, K, I, and H present.

G. C on December 10, 2015, reported to the Defendant on the implementation of the corrective measures as follows:

A person shall be appointed.

H. As a result of reviewing the performance report submitted to C on December 16, 2015, the Defendant notified the 6th board of directors and the 7th board of directors (hereinafter collectively referred to as the “board of Directors”) of the attendance and resolution of two expiration directors (I and H) who are not qualified in the process of emergency treatment of the instant case, which would be complementary until December 31, 2015.

I. However, C did not supplement the Defendant’s corrective measures.

(j) Accordingly, the Defendant, following a hearing on February 12, 2016, against the Plaintiffs, who are C directors, on February 12, 2016, shall be subject to the Ministry of Education’s request for correction due to disputes among executive officers.

(B) The instant disposition was issued to revoke the approval of taking office (hereinafter referred to as the “instant disposition”) on the grounds that the instant disposition was not implemented, and that the appointment of a faculty member (the president of the D University, the Eth Superintendent) was not implemented, and that it caused serious obstacles to the operation of the relevant school.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, 9, 10 evidence, Eul evidence 1 through 5 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. Summary of the plaintiffs' assertion

1) Non-existence of grounds for disposition

The plaintiffs implemented all the corrective measures against the defendant at the meeting of the board of directors of this case. At the time of the board of directors of this case, the attendance of I and H whose term of office expires and exercising voting rights is based on the right to take emergency measures against the expiration director. Accordingly, the plaintiffs were deemed to have implemented the corrective measures against the defendant, and the disputes among executives did not cause serious obstacles to operating the school. In addition, the failure to appoint the head of the school to which they belong is not in violation of

Therefore, since the instant disposition does not exist, the instant disposition is unlawful.

(ii) the deviation and abuse of discretionary power;

Even if the grounds for the instant disposition exist, the instant disposition was unlawful as it deviates from and abused discretionary power for the following reasons.

A) Violation of the principle of proportionality

Around February 2, 2014, the Defendant reserved the approval of the application for the reappointment of the C director of G and H without any justifiable reason. If the Defendant officially approved it, the decision-making of the C board of directors would have been normally possible even after the expiration of the term of I and J. Thus, the Defendant’s fundamental responsibility, despite the lack of the director of C board of directors, was unreasonable for the Defendant to cancel the approval of taking office for the Plaintiffs, and there were many urgent and important issues such as appointment of the principal, appointment of the staff, the settlement of accounts for the year 2014, and the supplementary revised budget for the year 2015. Considering the fact that the cancellation of the appointment of the officer was a disposition that impairs the reputation of the Plaintiffs and deprived of the school juristic person’s right to manage or operate the school juristic person, the instant disposition violates the principle of proportionality.

B) Violation of the principle of trust protection

On April 29, 2014, the defendant notified to C of the attendance of the board of directors and the handling of agenda items, etc. on the expiration of the term of office, and issued a notice of convening the board of directors to all the officers at the expiration of the term of office. The instant disposition is against the principle of protection of trust because it infringes on the interests of the plaintiffs trusted without any reason attributable to

(b) relevant laws, regulations and regulations;

It is as shown in the attached Form.

C. Determination

1) Whether the instant disposition grounds exist

A) Article 20-2 (1) of the Private School Act provides that if an officer violates the provisions of the Private School Act or fails to comply with an order issued thereunder, or causes a serious obstacle to the operation of the relevant school due to a dispute between executives, the competent agency may cancel the approval of his taking office; Article 20-2 (2) provides that "Where an officer fails to comply with the approval of taking office under paragraph (1) after 15 days from the date on which the competent agency requested correction of the cause thereof to the school juristic person concerned; Article 20-2 (1) provides that "if a vacancy occurs among the directors, the competent agency shall fill the vacancy within two months."

Article 31 (1) of the Private School Act provides that "school juristic persons shall report and publicly announce the budget prior to the commencement of each fiscal year under the conditions as prescribed by the Presidential Decree, and the settlement of accounts at the end of each fiscal year to the competent authorities," and Article 14 (1) of the Enforcement Decree of the Private School Act provides that "where the school juristic persons report and publicly announce the budget and settlement of accounts to the competent authorities under the provisions of Article 31 (1) of the Act, they shall report and notify the budget and settlement of accounts at least five days before the commencement of each fiscal

On the other hand, Article 18 of the C articles of incorporation provides that "eight directors shall be appointed to a corporation," Article 20 (1) provides that "director and auditor shall be appointed by the board of directors and shall take office with approval from the competent authorities," Article 28 provides that "the board of directors shall hold a meeting with attendance of a majority of the registered directors (Paragraph (1) and pass a resolution with the consent of a majority of the fixed number of directors (Paragraph

B) First, according to the facts and the purport of the entire arguments as seen earlier, the Plaintiffs did not fill the vacancy within two months from the time when the vacancy occurred among the directors in violation of Article 24 of the Private School Act, and in violation of Article 31(1) of the Private School Act, the Plaintiffs did not report the settlement of accounts for the year 2014 by the school juristic person and its affiliated school within the given period. Therefore

C) In addition, the aforementioned facts and the evidence as mentioned above and the evidence as stated in Gap evidence Nos. 7, 8, and 11, Eul evidence Nos. 6 through 10, and the following circumstances acknowledged by the entire purport of the pleadings, namely, ① a dispute over the operation of Eul and D University has occurred between Q and R, etc., which is the founder of Eul, ② a dispute over the above dispute and the demand for study in D University has not been appointed as a new teacher due to C’s situation. During that period, four of the eight directors of C, including the plaintiffs, expiration of their terms of office on June 19, 2015; ③ a dispute between the directors of C, including the plaintiffs, continues to arise until the correction of this case, the appointment of C’s chief director and vacancy, C’s settlement of accounts and school year Nos. 2014 and year No. 2015, ⑤ A’s general supplementary budget for the settlement of accounts and operation of the pertinent school, and the No.4226, etc., the president of the pertinent school, etc., can be deemed otherwise.

D) On October 26, 2015, the Defendant issued the instant corrective order to C on October 26, 2015, and after the extension of the due date on one occasion upon C’s request, the fact that C issued the instant disposition on the ground that C did not comply with the request, is as seen earlier.

The plaintiffs asserted that the defendant's corrective measures were all implemented through the resolution of the board of directors of this case, but the plaintiffs' above assertion cannot be accepted for the following reasons.

(1) Even if the term of office of all or some of the directors of a school foundation expires, in cases where the selection and appointment is invalidated and it is deemed inappropriate for the former director to perform the duties of the school foundation, barring any special circumstance to deem that it is inappropriate for the former director to perform the duties of the school foundation, the right to manage emergency affairs of the former director shall be acknowledged until the former director is appointed (see, e.g., Supreme Court en banc Decision 2006Du19297, Jul. 19, 2007).

However, the right to perform such duties as a director whose term of office expires or resigned is limited to cases where there is an urgent reason to suspend the corporation's normal activities, so if the term of office is not yet expired or other directors who have not resigned are able to engage in the activities of a normal corporation, it is not necessary to have the director who has expired or resigned from office continue to perform his/her duties as a director, and in such a case, he/she shall naturally retire from office (see, e.g., Supreme Court Decision 95Da40038, Dec. 23, 1996).

② According to C’s articles of incorporation, “The board of directors shall be convened with attendance of the majority of the registered directors, and shall pass a resolution with the consent of a majority of the number of the directors.” Thus, in the case of G, H, and I whose term of office expires, it constitutes a case where the normal school juristic person’s activities may be performed by other five directors whose term of office has not yet expired, and therefore, the above three directors shall naturally retire from C’s office at the expiration of the term. On the other hand, in the case of J, the term of office of which expires after the expiration of the former term of office, four directors remaining after the expiration of the term of office fall under the case where the normal school juristic person’s activities cannot be performed by themselves, thereby recognizing Article 691 of the Civil Act.

In regard to this, the Plaintiffs asserted that, in such cases, five directors (four directors whose term of office has not expired and the JJ recognizing the right to take emergency measures) cannot make a decision, and therefore, normal school juristic persons cannot make a decision, and therefore, the right to take emergency measures against all directors whose term of office has expired should be recognized. However, the Plaintiffs asserted that the right to take emergency measures against all directors whose term of office has expired should be exceptionally acknowledged only in inevitable cases. However, just because there is such concern as otherwise alleged by the Plaintiffs, the right to take emergency measures against all other directors whose term of office has expired cannot be deemed to have been acknowledged.

③ Therefore, at the time of the instant board of directors, four directors (Plaintiffs, K, L), the term of office of which has not expired, and the J acknowledged the right to take emergency measures. However, the instant board of directors attended and resolved by the Plaintiffs, K, and I. H. In that sense, I and H did not have the authority to take as a director of C. Accordingly, the instant board of directors would eventually pass a resolution by the attendance of only three directors (Plaintiffs, and K) who fall short of the quorum.

④ Therefore, it cannot be deemed that the Defendant’s corrective request was implemented on the ground that the resolution of the board of directors of the instant case was made.

E) Therefore, the grounds for the instant disposition exist, and this part of the Plaintiffs’ assertion is without merit.

2) Whether the discretion is deviates or abused or not

A) Whether the cancellation disposition of taking office under Article 20-2 of the Private School Act deviates from or abused the scope of discretion under the social norms ought to be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual by objectively examining the content of the act of violation as a ground for the disposition, the public interest to be achieved by the relevant act of disposal, and the relevant circumstances (see, e.g., Supreme Court Decision 2011Du6431, Sept. 4, 2014).

The following circumstances recognized by the overall purport of the evidence and oral argument, namely, ① the appointment of the president and directors (operation of the board of directors), settlement of accounts, appointment of teachers, etc., caused significant damage to the operation of the school foundation and its affiliated school, ② the normal composition and operation of the board of directors are inevitably requested for the normalization of the operation of C; ③ However, C does not have any way to achieve C’s normalization in addition to the instant disposition revoking the approval of taking office for the Plaintiffs, ④ there seems to be no way to achieve C’s normalization. ⑤ In light of the Defendant’s demand for warning measures against G and D University around October 6, 2014 pursuant to G and D University’s fact-finding survey results, etc., it is difficult to view that it was unreasonable for the Defendant to withhold approval of the appointment of the director of G and H, and the Plaintiffs cannot be viewed as abuse of discretion even if it did not obtain the approval of the appointment of the director of G and H, and thus, it cannot be viewed that the Plaintiffs’ revocation of the appointment of the board of directors of this case can be considered as abuse of autonomy.

B) Meanwhile, in order to apply the principle of the protection of trust to an act of an administrative agency in an administrative legal relationship, first, the administrative agency should name the public opinion that is the object of trust to an individual; second, the administrative agency's statement of opinion that is justifiable and trusted shall not be attributable to the individual; third, the individual should have trusted and trusted the opinion statement; third, the administrative agency should have conducted any act in violation of the above opinion statement; fourth, the administrative agency's disposition contrary to the above opinion statement should cause an infringement on the individual's interest in trust. If a certain administrative disposition satisfies these requirements, it is against the principle of the protection of trust unless it is likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decision 2006Du10931, Jan. 17, 2008).

In full view of the purport of the argument in Gap evidence No. 7, as a whole, since the defendant filed a civil petition against three directors subject to the application for approval for taking office of the return corporation on April 29, 2014 and is currently under fact-finding, it is expected that the defendant will process the approval for taking office of the return corporation according to the result of the civil petition fact-finding survey. In accordance with Article 691 of the Civil Code, it may be recognized that the right to continue to perform the previous duties can be recognized until the new director is appointed by the former director. At present, the board of directors of the return corporation is difficult to operate the corporation (university) due to the lack of the quorum (four persons), so it is difficult to inform that the attendance of the board of directors, agenda items, etc. of the expired officer will be possible to handle the urgent agenda, and the board of directors notification of "the board of directors shall take measures to be known to the executive officers (including three

However, as seen earlier, in light of the fact that the Defendant sent a public notice demanding C to appoint an executive officer on September 1, 2015 prior to the instant request for correction and disposition, and as a result of external legal advice from the educational department, the scope of participation of the director at the expiration of the board of directors’ emergency treatment rights is to be minimized within the scope of the quorum of the board of directors under the Private School Act, it cannot be deemed that the Defendant expressed a public opinion to the effect that “A or the Plaintiffs have the right of emergency treatment.” Thus, the instant disposition is not deemed to violate the principle of trust protection.

C) Therefore, the plaintiffs' assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.